Governor Ron DeSantis of Florida, the clean-cut Trumpian face of the Republican Party's future, has now moved to block faculty at the University of Florida from testifying in a case brought against the Republican attempt to prevent the "wrong" people from voting:
Three University of Florida professors have been barred from assisting plaintiffs in a lawsuit to overturn the state’s new law restricting voting rights, lawyers said in a federal court filing on Friday. The ban is an extraordinary limit on speech that raises questions of academic freedom and First Amendment rights.
University officials told the three that because the school was a state institution, participating in a lawsuit against the state “is adverse to U.F.’s interests” and could not be permitted….
The university’s refusal to allow the professors to testify was a marked turnabout for the University of Florida. Like schools nationwide, the university has routinely allowed academic experts to offer expert testimony in lawsuits, even when they oppose the interests of the political party in power.
Leading experts on academic freedom said they knew of no similar restrictions on professors’ speech and testimony and said the action was probably unconstitutional….
Robert C. Post, a Yale Law School professor and expert on academic freedom and the First Amendment, said he knew of no other case in which a university had imposed prior restraint on a professor’s ability to speak.
“The university does not exist to protect the governor,” he said. “It exists to serve the public. It is an independent institution to serve the public good, and nothing could be more to the public good than a professor telling the truth to the public under oath.”
Obviously what Florida has done is outrageous and, as Professor Post says, contrary to one of the purposes of a public university. But is it illegal? Probably it is, but, unfortunately, I fear it is complicated, and has the potential to expose a weakness in existing legal doctrine about speech by public employees.
Lurking in the background is the 2006 Supreme Court case of Garcetti, which held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Speech by a public employee which can be grounds for discipline after the fact can also presumably be proscribed outright. Now Garcetti involved a prosecutor who claimed constitutional protection for a memo to his superiors about a warrant whose factual basis he deemed wanting. The Court rejected the attorney’s claim, noting that “his expressions were made pursuant to his duties” in the prosecutor’s office. But are not the teaching and writing of a professor at a public university all “expressions…pursuant to his duties”?
One of the dissenters in Garcetti, Justice David Souter, raised the worrying implications for academic freedom of the majority's decision. This elicited the following concession from Justice Anthony Kennedy in the majority opinion:
Justice Souter suggests today’s decision may have important ramifications for academic freedom, at least as a constitutional value. There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship and teaching.
In other words, the Supreme Court simply left it open whether the Garcetti rule applies wholesale to professors at public universities. Florida will presumably claim that Garcetti permits it to prevent its employees, the professors, from testifying. Of course, there is not just the academic freedom issue here, but also the fact that testimony at a trial seems to serve an especially important public interest, one that courts, unsurprisingly, take seriously. The current Supreme Court also includes three former professors–Justices Barrett, Breyer, and Kagan–as well as two Justices who have been quite involved with the academy (Justices Gorsuch and Kavanaugh, although Kavanaugh may have soured on the academy for the obvious reasons). Still, it would be foolish to think this very conservative court will necessarily fill the gap left by Garcetti in a way that protects the academic freedom of faculty at public universities.
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